Many lawyers believe the Supreme Court's decision in Windsor v. United States will mean the death knell of the Defense of Marriage Act (DOMA). I do not agree. The issue before the Court involves Section 3 of DOMA. The case is not challenging DOMA in its entirety. I think this is being missed by many people talking about the case. I keep hearing media pundits, including the legal talking heads, discuss the end of DOMA. It seems they have not read the briefs or listened to the arguments.

Section 3 deals with the federal government's refusal to recognize same-sex marriage. Section 2 grants states the right to refuse to recognize these marriages. Section 1 is the title and definition part.

Edith Windsor challenged the federal government's decision to charge her $326,000 for estate taxes on her late spouse's estate. Had her spouse been a man there would be no estate tax due because spouses can transfer an unlimited amount of assets between themselves. Windsor's case argues that her marriage was legal in both Canada--where she and Thea were married--and in New York where they lived. Both jurisdictions recognized the marriage. Under DOMA, however, the IRS was prohibited from doing the same.

Windsor is not challenging DOMA as a whole. This is an incremental step in the process.

If Windsor is successful, the Supreme Court will declare Section 3 unconstitutional as it is applied in marriage equality jurisdictions. That includes 12 states (Massachussetts, Maine, Vermont, New Hampshire, Connecticut, Rhode Island, Delaware, Maryland New York, Minnesota, Iowa and Washington) and the District of Columbia.

It will NOT apply in the 28 remaining nonrecognition states. It MAY NOT apply in the states that permit some type of recognition like Civil Unions or Domestic Partnerships (California, New Jersey, Oregon, Colorado, Hawaii, Illinois and Wisconsin). California

But, no one knows exactly what will happen until the Court issues its decision--and that will come next week. The Court's session ends at the end of June.

The United States Supreme Court ended today's session without issuing a decision in Windsor v. United States or Hollingsworth v. Perry. The court will reconvene on Monday, June 17, 2013. The SCOTUS blog will start its live blogging at 930 a.m. on Monday. They will carry live coverage of the decisions being issued. SCOTUS blog is an excellent source of information on the U.S. Supreme Court.

FYI, SCOTUS is an acronym for Supreme Court of the United States.

As of now, the Court has listed Monday, June 17 as the last day to issue decisions. However, it may add additonal days next week. I think the Court will wait until the last possible moment to issue its decisions on affirmative action, the Voting Rights Act, DOMA and Prop 8 because all four cases will generate considerable response from the media and the public. The Justices may want to leave town before the decisions see the light of day.

In any event, it is an exciting time to be watching the court. These 4 decisions will have great impact on the lives of so many Americans.

Some married lesbian and gay couples are considering filing protective claims this year because of the pending U.S. Supreme Court cases in Windsor v. United States and Hollingsworth v. Perry.

These couples are filing amended federal tax returns listing themselves as "married and filing jointly". The Internal Revenue Code allows protective claims and the returns will be put on hold pending the outcome of, in this case, the Supreme Court's decision in those two cases.

The Defense of Marriage Act (DOMA) prohibits the feds from recognizing same-sex marriages. This means lesbian and gay married couples cannot file as married on their tax returns. They must file as "single". However, since they are legally married there is a concern about the "under penalty of perjury" provision when they sign their returns. It's a conundrum for them--they aren't single, except where the feds are concerned because of DOMA.

This is where the protective claims come into play. Look at IRS Pub 556 for additional information on how to file and talk to your tax preparer. There is a 3-year look back period for filing an amended return. You'll be able to go back to tax year 2009.

Protective claims are often based on pending court cases, like Windsor. It may be worthwhile to checkin into whether you are eligible to file a protective claim and whether it will do you any good. In some cases, a married lesbian/gay couple may be entitled to a refund.

No guarantees but it should be a consideration.

Lots happening on the LGBT front. The U.S. Supreme Court will hear oral arguments on March 26 and March 27 in the Windsor v. United States and the Hollingsworth v. Perry cases.

Windsor deals with Edith Windsor's claim that section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. She won at trial and in the 2nd Circuit Court of Appeals. Edith and her late spouse, Thea Spyer, were married in Canada (see my earlier post).

After Thea died Edith owed over $320,000 in federal estate tax. Had their marriage been recognized by the federal government the amount owed would have been $0--just like any other married couple. DOMA prohibits the federal government from recognizing same-sex marriages--even when the marriages are recognized in the taxpayer's state of residence.

So, the Supreme Court will consider the appeal. No one is sure what will happen or what the vote will be, but the next few months will be an interesting and tense time.

One big issue is whether the court will declare section 3 of DOMA unconstitutional across the board and require the feds to recognize same-sex marriages in every state; even those that prohibit recognition. And, what impact it will have on couples living in Civil Union and Domestic Partnership states.

The Hollingsworth case comes out of California and deals with Proposition 8, the 2008 California ballot initiative that prohibited same-sex marriage. The 9th Circuit decision was written with Justice Kennedy in mind and is narrowly drawn.

One issue that may preclude any definitive decision is if the court decides neither the Prop 8 proponents appealing in Hollingsworth or the U.S. Housing of Representatives appealing in Windsor have the right to appeal. The Court could dismiss both appeals without addressing the merits. It would be tantamount to a judicial kicking the can down the road. Stay tuned.

It's been awhile since I last posted anything. The past 8 months have been complicated. I have been caring for my parents--both 88--and, until last August, both in good health. Something had to give and I'm afraid it was this website and regular updates. My Dad died February 27 and Mom is dealing with the loss of the man she spent the past 66 years with. It continues to be a difficult time.

Lots happening on t

I thought about adding a photo, but there is no way I want Mitt on this site. A new article in the LGBT newspaper, Boston Spirit,  provides an insight into the Republican nominee--and it is not favorable. Apparently, his parents never taught him the basics of courtesy and fairness. The article, "Romney, A Wimp? Not so much, say gays who engaged with him as governor",( http://bo.st/P8RKrl ) 

The article is difficult to read since there is a possibility that Romney may become president. That would be a disaster for the U.S.. The video that Mother Jones released shows the real Romney. And, the 47% he talks about--the ones that he is writing off--could it be he believes they are all people of color? That those 47% are not like him so they do not count?

The guy is an arrogant automaton--and I don't care what his wife says about him. The only people Romney will concern himself with are those that are "like them."

BTW, Romney doesn't pay income tax either--all of his money comes from investments. Income tax is only paid on "earned income". Wonder if he realizes that he's part of that 47% that he despises. I think he should have the "privilege" of paying income taxes...but not from the income paid to the President of the United States.